588 F.

2d 31
3 Fed. R. Evid. Serv. 1148

UNITED STATES of America, Appellee,

v.
Samuel D. WRIGHT, Appellant.
No. 176, Docket 78-1219.

United States Court of Appeals,

Second Circuit.
Argued Sept. 12, 1978.
Decided Dec. 4, 1978.
Certiorari Denied Feb. 21, 1979.
See 99 S.Ct. 1236.

Gerald L. Shargel, New York City (Fischetti & Shargel, New York City,
Gustave H. Newman and Roger Bennett Adler, New York City, of
counsel), for appellant.
Edward R. Korman, U. S. Atty., Brooklyn, N. Y., for the Eastern District
of New York, for appellee.
Before SMITH, FEINBERG and MANSFIELD, Circuit Judges.
J. JOSEPH SMITH, Circuit Judge:

This is an appeal from conviction and sentence on trial to the jury in the United
States District Court for the Eastern District of New York, Edward R. Neaher,
Judge, of a school board official for solicitation and receipt "under color of
official right" of a payment of $5,000 from a seller of school supplies, in
violation of the Hobbs Act, 18 U.S.C. 1951, and conspiracy to defraud the
United States of federal funds granted to the school district, in violation of 18
U.S.C. 371. We find no reversible error and affirm the judgment.

In 1973, while Wright was chairman of New York City Community School
Board 23, Behavioral Research Laboratories, Inc. ("BRL"), a seller of
educational systems and materials to schools, which had a contract with the

board for the 1972-73 school year amounting to over $500,000, invited Wright
to speak at a conference which it conducted. Wright received $5,500 for this
appearance, $5,000 of which the government contended and the jury must have
found was induced by Wright and paid by BRL to influence the decision of the
board to purchase educational materials from BRL.
3

On appeal, Wright contends that the evidence was insufficient to show that the
payment was solicited in order to influence his official action, that the
government wrongfully refused to grant immunity to a witness, that the
admission of an out-of-court statement deprived him of his right to confront the
witnesses against him, that the prosecution was biased and that the
government's inflammatory summation deprived him of a fair trial. We find all
of Wright's contentions to be without merit and affirm for the reasons discussed
below.

Wright argues that the evidence was not sufficient to support a conviction on
either the Hobbs Act count or the conspiracy count. He claims that there was
no proof that he demanded anything from BRL under color of official right.
Rather, Wright insists that the evidence shows nothing more than a request by
him for an increase in the honorarium that he was to be paid for his appearance
at the BRL conference. He contends that such an innocent attempt to negotiate
a fee to which he had a legal right cannot constitute a violation of the Hobbs
Act. Likewise, Wright contends that the conspiracy conviction must be
reversed because there was no proof of an agreement, express or implied,
between Wright and BRL to defraud the United States.

We disagree with Wright's characterization of the case against him and

conclude that the evidence, viewed in the light most favorable to the
government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed.
680 (1942), was sufficient to support the jury's verdict.

In late 1972 or early 1973, James Phipps, then the Divisional Marketing
Director of BRL and responsible for sales in the Northeast region of the
country, invited Wright to speak at a conference to be held by BRL on February
1 and 2, 1973 at a hotel in San Francisco. Wright accepted the invitation and
delivered a forty-five minute address on February 2. The other speakers at the
conference were the education editor of Newsweek magazine, the president of
the American Federation of Teachers, the director of the Experimental School
Program of the National Institute for Education and John Tunney, United States
Senator from California.

Phipps received a telephone call from Wright on February 3, as a result of

Phipps received a telephone call from Wright on February 3, as a result of

which they later engaged in a conversation in the lobby of the hotel. Phipps
testified that Wright asked whether the honorarium he was to receive could be
increased. During the same conversation, Wright referred to the expenditures
that would be incurred in conducting a successful election campaign and
mentioned that people in the district which he represented found it very
difficult to raise funds. However, when Phipps was asked on the witness stand
whether Wright asked "for anything with regard to the funds necessary to run a
political campaign," he responded, "Not specifically, no."

Phipps subsequently conveyed the substance of his conversation with Wright to

Bert Parker, BRL's Vice President for Marketing. Allan Calvin, Chairman of
the Board of BRL, testified that Parker then informed him that Wright had
requested a $5,000 cash political contribution.1 As a result of his conversation
with Parker, Calvin asked Phipps to request Herbert Corbin, president of
Kanan, Corbin & Shupack ("KCS"), BRL's public relations firm, to "generate
the cash for the political contribution." Corbin resisted the request, but after a
conversation with Parker, he agreed that KCS would issue a $5,500 check to
Wright if BRL would first issue a check for that amount payable to KCS.

Meanwhile, Roger Sullivan, the president of BRL, had approved four separate
check request forms to pay the conference speakers. (Senator Tunney's agent
previously had been paid $2,500, of which the Senator was to receive $1,500.)
One request form, in the amount of $700, was for the Newsweek education
editor. The other three, including Wright's, were each in the amount of $500.
Four checks were drawn on BRL's account at the United California Bank, but
all were voided on February 12, before they could be delivered. On that same
day, BRL issued a $5,500 check to KCS. The request for this check was not a
printed form, but instead a handwritten page from the memo pad of Carl Peters,
BRL's Comptroller, containing the words "$5,500.00 Herb Corbin." Three days
later, Sullivan approved a printed check request form in the amount of $1,700
payable to KCS. This form included a handwritten list of the other three
speakers and the same amounts as requested in the original individual forms. A
check for $1,700 was issued to KCS, which in turn issued separate $500 and
$700 checks to the three speakers.

10

On February 14, KCS issued a $5,500 check payable to Wright. Corbin gave
this check to Phipps, who delivered it to Wright's office. Phipps testified that he
handed the check to Wright, who in return gave him a letter of intent which
indicated that Wright's school district was interested in renewing and expanding
the program that it had purchased from BRL. Calvin and Parker were
dissatisfied with this first letter and sought to obtain a stronger one. A second
letter of intent bearing Wright's signature and dated February 23 was

subsequently delivered to BRL. Both of these letters violated a directive of the

Chancellor of the Board of Education of the City of New York, which forbade
the issuance of letters of intent without the Chancellor's approval.
11

In August 1973, Community School Board 23 approved the purchase of an

expanded program from BRL. The vote was five to four, with Wright and the
other four board members who had run for election as part of his slate casting
the votes in favor of the purchase. The funds used to purchase the program
were provided by the federal government under Title I of the Elementary and
Secondary Education Act of 1965.

12

This court in United States v. Trotta, 525 F.2d 1096, 1100 (2d Cir. 1975), Cert.
denied, 425 U.S. 971, 96 S.Ct. 2167, 48 L.Ed.2d 794 (1976), approved the
Seventh Circuit's description of the offense of extortion under color of official
right as set forth in United States v. Braasch, 505 F.2d 139, 151 (7th Cir. 1974),
Cert. denied, 421 U.S. 910, 95 S.Ct. 1561, 43 L.Ed.2d 775 (1975):

13 use of office to obtain payments is the crux of the statutory requirement of

The
"under color of official right" . . . It matters not whether the public official induces
payments to perform his duties or not to perform his duties . . . . So long as the
motivation for payment focuses on the recipient's office, the conduct falls within the
ambit of 18 U.S.C. 1951.
14

The trial judge here correctly instructed the jury that 1951

15
would
not bar the payment to, and receipt by defendant of an honorarium or
speaking fee, unless you are satisfied beyond a reasonable doubt that the payment
focused on his public office and ability to aid B.R.L. and the defendant knew that
that was the reason the money was paid to him.
16

Appellant asserts that the evidence failed to establish that he Demanded a cash
political contribution. He argues that a strictly voluntary payment by BRL
would not amount to extortion within the meaning of 18 U.S.C. 1951, citing
United States v. Hathaway, 534 F.2d 386 (1st Cir.), Cert. denied, 429 U.S. 819,
97 S.Ct. 64, 50 L.Ed.2d 79 (1976). He further contends that we need only look
to the Phipps-Wright conversation in the hotel lobby to determine whether or
not there was proof of a demand under color of official right. We decline,
however, to view the proof so narrowly, for it is settled law that the evidence
"must be viewed in light of the totality of the Government's case, since one fact
may gain color from others." United States v. Tramunti, 500 F.2d 1334, 1338
(2d Cir.), Cert. denied, 419 U.S. 1079, 95 S.Ct. 667, 42 L.Ed.2d 673 (1974).

17

The jury properly could have found Wright guilty beyond a reasonable doubt of
a violation of the Hobbs Act. Phipps' testimony that Wright did not specifically
ask for a political contribution did not preclude the jury from reaching such a
verdict. The jury would have been justified in giving weight to Phipps'
testimony that Wright spoke of the difficulties of campaign fund-raising. They
could have concluded, as did BRL, that Wright was seeking to use the power of
his public office to obtain $5,000 in addition to the concededly legal $500
honorarium. Wright's assertion of his innocent motives is further undercut by
the simultaneous exchange of the $5,500 check for the first letter of intent. In
addition, Wright's action in providing both letters of intent in contravention of
an explicit directive of the Chancellor of the Board of Education supports a
conclusion that the letters and Wright's successful efforts to increase the
district's purchases from BRL were part of a Quid pro quo involving the
additional $5,000.2

18

The indictment also charged Wright with conspiring with BRL to defraud the
United States by depriving it of "the impartial, fair and honest distribution of
federal funds and of the faithful and honest participation of the Board of
Education of the City of New York in the financial grant program under Title I
of the Elementary and Secondary Education Act of 1965," in violation of 18
U.S.C. 371.

19

Wright contends that there was no proof that he agreed with BRL to defraud the
United States. We disagree. The agreement which constitutes the essence of a
conspiracy need not be explicit, but can be inferred from the facts and
circumstances of the case. Iannelli v. United States, 420 U.S. 770, 777 n. 10, 95
S.Ct. 1289, 43 L.Ed.2d 616 (1975); American Tobacco Co. v. United States,
328 U.S. 781, 809, 66 S.Ct. 1125, 90 L.Ed. 1575 (1946); United States v.
Green, 523 F.2d 229, 233 n. 5 (2d Cir. 1975), Cert. denied, 423 U.S. 1074, 96
S.Ct. 858, 47 L.Ed.2d 84 (1976). The facts which we have already discussed
were sufficient to support a finding that Wright implicitly agreed to exercise the
powers of his office to bring about the expenditure of federal funds for
continued and expanded purchases from BRL in return for BRL's additional
$5,000 payment to him.

20

Wright next contends that the government's failure to provide use immunity to
Parker, pursuant to 18 U.S.C. 6001-6003, deprived appellant of his right to
due process guaranteed by the fifth amendment. He concedes that the decision
to confer immunity ordinarily is within the sole discretion of the prosecutor.
United States v. Lang, 589 F.2d 92 (2d Cir. 1978); United States v. Housand,
550 F.2d 818 (2d Cir.), Cert. denied,431 U.S. 970, 97 S.Ct. 2931, 53 L.Ed.2d

1066 (1977). But, citing United States v. Morrison, 535 F.2d 223 (3d Cir.
1976), Wright argues that under extraordinary circumstances, due process may
require that the government confer use immunity on a witness for the
defendant.
21

Wright alleges that such extraordinary circumstances existed here. He contends

that Parker was "perhaps the most critical witness" against him in that Parker's
alleged out-of-court statement to Calvin constituted the only evidence that
Wright had demanded a political contribution from BRL. Wright notes that
Calvin testified that in his presence Parker denied having transmitted any such
demand for money. Thus Wright argues that Parker's own testimony in court
was essential to provide him with a fair trial. He contends that the government's
refusal to confer use immunity deprived him of that testimony, because Parker's
attorney said that without such immunity Parker would claim his fifth
amendment right against self-incrimination and refuse to testify.

22

Our summary of the evidence, set out above, makes clear that Parker's extrajudicial statement in fact was not the only, nor even the most important,
evidence that Wright extorted money from BRL. But we do not find it
necessary to decide under what circumstances, if any, due process would
require the government to confer use immunity on a witness at the request of a
defendant.3 For we conclude that Wright failed to make a sufficient showing
that he desired to have Parker testify and that Parker would refuse to testify
without use immunity.

23

After Corbin testified that Parker had denied transmitting Wright's demand to
Calvin, appellant's counsel obtained from the government Parker's address in
Oregon and the name of his attorney in New York. Appellant's counsel later
told the court that he had spoken by telephone with Parker's attorney who
asserted that Parker would not speak with Wright's lawyer and that Parker
would "take the Fifth Amendment" if Wright subpoenaed him. Wright's
counsel then said that if he subpoenaed Parker, he would ask the government to
confer immunity on him. The trial court urged appellant's counsel to issue a
subpoena as soon as possible. Counsel indicated that he would do so. At that
point, the prosecutor informed the court that he did not intend to seek a grant of
use immunity for Parker because he did not believe such a grant to be "in the
public interest" as required by 18 U.S.C. 6003(b)(1).4 On the following day,
however, the prosecutor offered to provide Parker with informal "letter
immunity,"5 the type of immunity which had been granted to a number of the
government's witnesses. He also stated that if Parker found that proposal
unacceptable, he would attempt to obtain authorization from the Justice
Department for an application for use immunity,6 despite his own belief that the

request would not satisfy the Department's criteria.

24

On the next day, Wright's attorney informed the court that he had again spoken
with Parker's attorney, who stated that he (Parker's attorney) would not be
satisfied with letter immunity and that he would insist on "full-blown
immunity." Wright's attorney then told the court that "as a result, I am not
wasting any money to subpoena his client." The record discloses no further
communications between Wright's counsel and either Parker or his attorney. No
subpoena was issued.

25

We conclude that Wright failed to establish the need for a grant of use
immunity to Parker. Wright argues that the proposition "that there was an
insufficient basis on which to apply for statutory immunity . . . is clearly
without merit," because 18 U.S.C. 6003(b)(2) provides that an application for
immunity can be made where an individual "has refused or is likely to refuse to
testify." This argument falls wide of the mark because the issue presented here
is not whether the government had the Power to apply for a grant of immunity,
but rather whether it had an Obligation to do so. We hold that it did not.

26

The key question raised by Wright's due process claim is whether the failure to
grant immunity denied him a fair trial. Because Wright failed to subpoena
Parker and to prove any need for use immunity, he cannot now demonstrate that
the refusal to confer immunity prejudiced his trial. Here, as in United States v.
Carman, 577 F.2d 556, 561 (9th Cir. 1978), the appellant's argument "is based
purely on speculation as to what (the witness) would do If called to the stand."
(Emphasis in original.) It is true that Parker's attorney asserted that his client
would not testify without use immunity. But without calling Parker to the
witness stand, "neither (the appellant) nor anyone else could be certain that (the
witness) would assert his right against self-incrimination." Id. It is not
improbable that Parker, for reasons of his own, might have preferred to avoid
having to travel from Oregon to New York in order to testify about his role in
the payment to Wright. Whether Parker would have maintained the position
that his attorney asserted, had he actually been subpoenaed and called to the
stand, is a matter of speculation upon which this court cannot base a finding
that Wright was denied his due process right to a fair trial.

27

Wright also suggests that the refusal to grant immunity violated his sixth
amendment right to have compulsory process for obtaining witnesses in his
favor. A claim that the use immunity statute is unconstitutional because
witnesses and defendants are not authorized to compel testimony on the same
basis as the government was rejected in In re Kilgo, 484 F.2d 1215, 1222 (4th
Cir. 1973), where the court said:

28 sixth amendment assures an accused "compulsory process for obtaining

The
witnesses in his favor." But the authors of the Bill of Rights did not deem it essential
to enhance this right by empowering the accused to confer immunity, and nowhere
in the Constitution do we find any justification for conditioning the government's
ability to grant immunity on a corresponding grant to private individuals.
29

It has also been held that the sixth amendment imposes no obligation on the
government to confer immunity on a witness at the defendant's request. United
States v. Alessio, 528 F.2d 1079 (9th Cir.), Cert. denied, 426 U.S. 948, 96 S.Ct.
3167, 49 L.Ed.2d 1184 (1976); Compare, United States v. Lacouture, 495 F.2d
1237 (5th Cir.), Cert. denied, 419 U.S. 1053, 95 S.Ct. 631, 42 L.Ed.2d 648
(1974); See generally Kastigar v. United States, 406 U.S. 441, 443-47, 92 S.Ct.
1653, 32 L.Ed.2d 212 (1972). But see United States v. Leonard, 161
U.S.App.D.C. 36, 66 n. 79, 494 F.2d 955, 985 n. 79 (1974) (Bazelon, C.J.,
concurring in part and dissenting in part); United States v. La Duca, 447
F.Supp. 779, 787 (D.N.J.1978) (dictum).

30

We need not determine whether the sixth amendment might ever require the
government to confer immunity on a defense witness. Wright did not avail
himself of the compulsory process to which he clearly was entitled, the right to
subpoena Parker. He cannot now complain that he was denied whatever other
rights he might have had under the compulsory process clause, had his
unexercised right of subpoena proved unavailing.

31

We next consider Wright's argument that he was denied his sixth amendment
right to confront the witnesses against him when the government failed itself to
call Parker as a witness after the admission of the extra-judicial statement. He
argues that Parker's statement was crucial to the government as well as
devastating to the defense and that there was nothing inherently reliable about
the statement.

32

Wright does not claim on appeal that Calvin's testimony reporting Parker's
statement did not satisfy the requirements of Fed.R.Evid. 801(d)(2)(E), as the
statement of a co-conspirator. That the testimony was admissible under the
rules of evidence does not, however, conclude our inquiry, but merely turns our
attention to the constitutional issue involved. The confrontation clause is not
merely the equivalent of the hearsay rules. Dutton v. Evans, 400 U.S. 74, 81-82,
91 S.Ct. 210, 27 L.Ed.2d 213 (1970); California v. Green, 399 U.S. 149, 15556, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970).7

33

The Supreme Court has not ruled upon the interrelation of Rule 801(d)(2)(E)

and the confrontation clause. Some circuits have adopted the position that a
statement of a co-conspirator admissible under Rule 801(d)(2)(E) per se
satisfies the requirements of the confrontation clause. United States v. Johnson,
575 F.2d 1347 (5th Cir. 1978); United States v. Papia, 560 F.2d 827 (7th Cir.
1977); Ottomano v. United States, 468 F.2d 269 (1st Cir. 1972), Cert. denied,
409 U.S. 1128, 93 S.Ct. 948, 35 L.Ed.2d 260 (1973). This court, however,
previously has concluded that Dutton mandates a case-by-case examination to
determine whether the defendant's right of confrontation has been abridged.
United States v. Puco, 476 F.2d 1099 (2d Cir.), Cert. denied, 414 U.S. 844, 94
S.Ct. 106, 38 L.Ed.2d 82 (1973); Accord, United States v. Davis, 578 F.2d 277
(10th Cir. 1978); United States v. Kelley, 526 F.2d 615 (8th Cir. 1975), Cert.
denied, 424 U.S. 971, 96 S.Ct. 1471, 47 L.Ed.2d 739 (1976); United States v.
Snow, 521 F.2d 730 (9th Cir. 1975), Cert. denied, 423 U.S. 1090, 96 S.Ct. 883,
47 L.Ed.2d 101 (1976).
34

In Puco, 476 F.2d at 1103, we read the plurality opinion in Dutton as indicating
that "the presence of sufficient 'indicia of reliability' may, in some
circumstances, permit the prosecution to introduce out-of-court statements into
evidence even though the declarant is available to it and the defendant has
never had an opportunity to cross-examine him." We held that this rule applied
at least where the statement is not "crucial" to the prosecution or "devastating"
to the defendant.

35

We believe that Parker's extra-judicial statement bore sufficient indicia of

reliability to assure that "the trier of fact (had) a satisfactory basis for
evaluating the truth of the prior statement." Dutton v. Evans, supra, 400 U.S. at
89, 91 S.Ct. at 220, quoting California v. Green, supra, 399 U.S. at 161, 90
S.Ct. 1930. In Puco, we suggested that "(i)n most cases the determination that a
declaration is in furtherance of the conspiracy . . . will decide whether sufficient
indicia of reliability were present. While there may be exceptions, we do not
think that they will be frequent." 476 F.2d at 1107-08. There is nothing that
would lead us to conclude that Parker's statement is one of those exceptions.
First, the possibility that Parker was relying on faulty recollection is remote. He
made the statement to Calvin either the same day as or the day after he learned
of Wright's desire to obtain $5,000. Second, the circumstances were such that
there is no reason to believe that Parker misrepresented what Phipps told him.
Parker had no motive to want his superiors to believe that Wright was seeking a
political contribution if in fact he had asked only for an honest renegotiation of
his honorarium. Lastly, the circumstances and general nature of Parker's
statement are corroborated by other testimony of witnesses who were subjected
to substantial cross-examination. Phipps confirmed that a meeting with Wright
took place after the conference. Phipps also testified that he conveyed his

conversation with Wright to Parker, telling him that Wright had "intimated . . .
that he was hopeful of getting a substantial amount of money." Calvin testified
that he asked Phipps to contact Corbin and to arrange "for the political
contribution to Mr. Wright" and that Phipps replied that he would do so. Corbin
testified that first Phipps and then Parker telephoned him to arrange the
issuance of the $5,500 check. As a result of all these factors, we believe that the
jury could adequately weigh the credibility and importance of Parker's
statement.
36

We also conclude that Parker's statement was neither "devastating" nor

"crucial." As we said in Puco, 476 F.2d at 1104, "Admittedly, these terms do
not offer a precise standard, but we interpret them as requiring that the evidence
be in some way essential, indeed central, to the prosecution's case." Our review
of the evidence has demonstrated that there was a sufficient basis for the jury to
convict Wright on both counts without any reference to Parker's statement.
Wright argues that the statement is crucial because it was the only evidence that
he demanded a "political contribution." We have already stated that it was not
necessary that the government show that Wright asked for a contribution In
haec verba and that the jury could infer an extortive demand from the
testimony of Phipps and the surrounding circumstances. Finally, appellant's
attempt to place importance on the use of the words "political contribution" is
defeated by his own success in cross-examination of Calvin, during which the
witness conceded that he did not recall the exact words that Parker had used. In
light of these facts, we cannot conclude that the out-of-court statement was in
any way crucial or essential to the government's case. Thus no error was
committed in allowing the testimony without an opportunity to cross-examine
Parker.

37

Wright's two remaining grounds of appeal require little comment. We do not

condone the prosecutor's repeated use of the term "preparations man" in
referring to Wright's experience in preparing cases for trial while employed in
the office of the Corporation Counsel of the City of New York. These
references may have crossed "the exceedingly fine line which distinguishes
permissible advocacy from improper excess." United States v. White, 486 F.2d
204, 207 (2d Cir. 1973), Cert. denied, 415 U.S. 980, 94 S.Ct. 1569, 39 L.Ed.2d
876 (1974). But viewed in the context of a summation which totaled several
hours at the conclusion of a rather long and hotly contested trial, whatever
inappropriate comments were made did not deprive the defendant of a fair trial,
and thus reversal is not warranted. United States v. Socony-Vacuum Oil Co.,
310 U.S. 150, 239, 242, 60 S.Ct. 811, 84 L.Ed. 1129 (1940); United States v.
White, supra, 486 F.2d at 207.

38

The district court properly rejected Wright's claim that the prosecution against
him was biased because the wife of the Assistant United States Attorney who
presented this case to the grand jury was allegedly a political opponent of
Wright. The Justice Department's Counsel on Professional Responsibility
reviewed the investigation and concluded that there had been no misconduct.
We agree that no showing of bias of the prosecutor was made here. The
American Bar Association Standards Relating to the Prosecution Function,
1.2, provides that "A conflict of interest may arise when, for example, . . . a
business partner or associate or a relative has any interest in a criminal case,
either as a complaining witness, a party or as counsel." None of these
circumstances was present here. We find no impropriety or appearance of
impropriety.

39

The judgment is affirmed.

This and other testimony was admitted under Fed.R.Evid. 801(d)(2)(E) as the
statement of a co-conspirator, subject to subsequent proof of the existence of
the conspiracy. Wright does not contend that the testimony was not admissible
under the rule

Evidence of such a Quid pro quo may be forthcoming in an extortion case,

although it is not an essential element of the crime. United States v. Trotta, 525
F.2d 1096, 1100 (2d Cir. 1975), Cert. denied, 425 U.S. 971, 96 S.Ct. 2167, 48
L.Ed.2d 794 (1976)

Courts which have confronted this question have reached a variety of results.
Compare, e. g., United States v. Morrison, 535 F.2d 223, 229 (3d Cir. 1976)
(immunity required because of prosecutorial misconduct), and Earl v. United
States, 124 U.S.App.D.C. 77, 80 n. 1, 361 F.2d 531, 534 n. 1 (1966) (immunity
might be required if government granted it to its own witness), Cert. denied,
388 U.S. 921, 87 S.Ct. 2121, 18 L.Ed.2d 1370 (1967), With United States v.
Ramsey, 503 F.2d 524, 532 (7th Cir. 1974) ("no merit to the argument" that
defendant has constitutional right to immunity for his witness), Cert. denied,
420 U.S. 932, 95 S.Ct. 1136, 43 L.Ed.2d 405 (1975)

18 U.S.C. 6003(b) provides that:

A United States attorney may, with the approval of the Attorney General, the
Deputy Attorney General, or any designated Assistant Attorney General,
request an order under subsection (a) of this section when in his judgment

(1) the testimony or other information from such individual may be necessary
to the public interest . . . .
5

Letter immunity consists of a promise by the particular United States attorney

not to prosecute the witness for his participation in the transaction about which
he testifies. The government now contends that this promise would have been
enforceable against United States attorneys in other districts as well

18 U.S.C. 6003 requires that a local United States attorney obtain approval of
a request for an order compelling testimony pursuant to a grant of use
immunity. See note 4, Supra

The Supreme Court in Dutton characterized the co-conspirator rule as a hearsay

exception. The new Federal Rules of Evidence adopted the opposing view that
the statement of a co-conspirator simply does not come within the definition of
hearsay. This change in terminology has no significance for the purpose of
determining whether admission of a statement into evidence satisfies the
confrontation clause